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STATE OF MINNESOTA IN SUPREME COURT A10-1633

St. Louis County Lawrence James Montanaro, petitioner, Appellant, vs. State of Minnesota, Respondent. ________________________

Page, J.

Filed: September 7, 2011 Office of Appellate Courts

David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant State Public Defender, St. Paul, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, Duluth, Minnesota, for respondent. ________________________ SYLLABUS The postconviction court did not abuse its discretion when it denied appellant's petition for postconviction relief when the alleged errors in the jury instructions and the prosecutor's alleged misconduct during his closing argument did not affect appellant's substantial rights. Affirmed.

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OPINION PAGE, Justice. In this first-degree murder case, appellant Lawrence James Montanaro appeals from an order denying his petition for postconviction relief. The petition, which

Montanaro filed after the statute of limitations for filing a postconviction petition expired, alleged that Montanaro was entitled to a new trial because the trial court's self-defense jury instruction and the prosecutor's closing argument contained plain errors that affected his substantial rights. Montanaro's appeal presents two issues. First, whether Montanaro established that his petition fell within an exception to the postconviction statute of limitations. Second, whether the postconviction court abused its discretion when it

denied Montanaro's request for a new trial based on the court's conclusion that the alleged errors did not satisfy the third prong of the plain error test because the errors did not affect Montanaro's substantial rights. Because we conclude that the alleged errors did not affect Montanaro's substantial rights, we affirm the postconviction court's denial of Montanaro's petition, without deciding whether Montanaro established an exception to the statute of limitations for filing a postconviction petition.

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Montanaro was indicted for 15 felony counts, including first-degree murder for the death of a peace officer1 in violation of Minn. Stat.

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